If you didn't make it through our detailed rant on how factually wrong, from top to bottom, rightwing Judge Frank Easterbrook of the 7th Circuit Court of Appeal was in his "horrendous" ruling on Wisconsin's GOP Photo ID voting law (now pending an emergency ruling by the U.S. Supreme Court), the ACLU focused in a press release on the same thing we did --- but in a much shorter version.

Dale Ho, director of the ACLU's Voting Rights Project, said in a statement issued after the ruling: "Permitting this law to go into effect so close to the election is fueling voter confusion and election chaos in Wisconsin, particularly for the many voters who have already cast their ballots. Voters deserve a fair shake, and this last-minute disruption changes the rules of the game in an election that is already underway, and risks locking out thousands of voters."

Then, the ACLU offered this pithy bullet point --- which summarizes our long article (taking apart each of these false claims one by one) --- to underscore the "factual inaccuracies in the appeals panel's ruling":

The Seventh Circuit also could not fathom that so many registered Wisconsin voters lack a photo ID "in a world in which photo ID is essential to board an airplane, . . . pick up a prescription at a pharmacy, open a bank account or cash a check at a currency exchange, buy a gun, or enter a courthouse to serve as a juror or watch the argument of this appeal." Wrong, wrong, wrong, wrong, and wrong again. Wisconsin fliers, patients, bank customers, gun owners, and court watchers do not need photo IDs. Only Wisconsin voters.

And, remember, Republican Governor Scott Walker, who is in a "toss up" re-election contest against Democratic challenger Mary Burke this year, was named the winner of his original 2010 election by just 124,638 votes. That margin is less than half of the number of legally registered voters in the state who are now unlikely to be able to cast a vote at all in this year's election, unless SCOTUS tosses out the ridiculous, falsehood-riddled ruling of the 7th Circuit.

KPFK/Pacifica Radio is on fund drive of late, but with all the breaking election news this week, I couldn't stand to not do a fresh BradCast for my syndicated network affiliates who deserve better than a "Best Of" on a week like this one, as Election Day draws near.

So, since it appears this year's election is likely to be decided in the courts, before we even get to Election Day, here's our non-KPFK "Special Election Coverage Edition" for the affiliates and for you, as produced here at The BRAD BLOG World News Headquarters, rather than at the radio station as it is usually done.

No guests, no callers, just me, lots of information and rants, and an occasionally thought or question from my producer Desi Doyen. Given all of that, and the news this week and last (particularly from SCOTUS), the result may be somewhere between a radio broadcast and a primal scream. But many of my shows seem to amount to that these days.

Voter ID laws helped contribute to lower voter turnout in Kansas and Tennessee in 2012, according a new study by the Government Accountability Office.

Congress's research arm blamed the two states' laws requiring that voters show identification on a dip in turnout in 2012 - about 2 percentage points in Kansas and between 2.2 and 3.2 percentage points in Tennessee. Those declines were greater among younger and African-American voters, when compared to turnout in other states.
...
"This new analysis from GAO reaffirms what many in Congress already know: Threats to the right to vote still exist," [Senator Patrick Leahy (D-VT)] said in a statement. "That is why Congress must act to restore the fundamental protections of the Voting Rights Act that have been gutted by the Supreme Court."

The report, according to Leahy's full statement, "also found scant evidence of voter fraud that the new laws that ostensibly are designed to discourage."

I'm on a number of deadlines today, so haven't gotten to peruse the actual report yet, but let me note a quick point or two, based on The Hill's reporting on the GAO study, which was requested by Democratic Senators Leahy (VT), Durbin (IL), Schumer (NY), Nelson (FL) and independent Sanders (VT), all of whom are co-sponsoring legislation to fix the part of the Voting Rights Act that the U.S. Supreme Court gutted last year in its notorious 5-4 decision...

Let me say this up front, so you don't miss it this time: No, a Photo ID is not required to board an airplane. Period.

Last week, the ACLU filed an emergency appeal to the U.S. Supreme Court in hopes of having the 7th Circuit Court of Appeal's ruling --- which overturned a lower court's injunction on Wisconsin's new Photo ID voting restriction --- stayed in advance of next month's election.

Today (Monday) a rather remarkable new opinion was issued by the 7th Circuit which seems designed to serve as a last-minute assist to the Republican defendants in Wisconsin in their response to the ACLU appeal, as Justice Elena Kagan has required the state's response no later than 5pm on Tuesday. The ruling is littered with blatant falsehoods.

To recap very briefly, how we got to this point, and the astonishing claims in the 7th Circuit's opinion today: the GOP law requiring very specific types of state-issued Photo IDs for voting in Wisconsin was struck down earlier this year after it was found, by U.S. District Court Judge Lynn Adelman, to be both a violation of the U.S. Constitution and the federal Voting Rights Act. His thorough, 70-page ruling [PDF] found that some 300,000 legally registered voters in Wisconsin (nearly 10% of them) lacked the specific type of Photo ID that would now be needed vote under the new restriction. Adelman also determined that the law amounts to a "unique burden [which] disproportionately impacts Black and Latino voters" (who just happen to lean towards Democratic candidates), and that the new restriction on voting would "prevent more legitimate votes from being cast than fraudulent votes."

In mid-September, on appeal, a panel of three Republican-appointed judges on the 7th Circuit tossed out Adelman's permanent injunction with little comment. Amidst ensuing "electoral chaos", as election officials and voters in the state scrambled to make sense of the stunning last minute change to the law, just weeks before the mid-term election, the ACLU appealed for a rehearing before the full 7th Circuit. That hearing resulted in a deadlocked 5 to 5 vote by the judges (one seat on the court has been vacant since 2010), which meant that the partisan 3-judge panel's ruling, restoring the Photo ID restriction after it had been struck down by the lower court, now remains in place.

That brings us to the ACLU's emergency appeal to SCOTUS last week, and Monday's remarkable new opinion issued by the 7th Circuit at the last minute, clearly made to justify the original opinion issued last week which seems to have otherwise landed with a thud. (The court had attempted to compare a "need" to restore new voting restrictions at the last minute to the U.S. Supreme Court's stay placed on the overturning of same-sex marriage bans in several states last year. The dissenters called the court's legal theories "brazen", "shocking" and on its central thesis comparing the WI law to a 2008 landmark case in Indiana, "dead wrong.")

University of California-Irvine's election law professor Rick Hasen described the new opinion issued on Monday as "a nice assist from the 7th Circuit panel to the state of Wisconsin," just in time for the SCOTUS deadline.

In a more detailed follow-up item, however, Hasen, who is usually quite conservative when it comes to concerns about Photo ID voting restrictions, went somewhat ballistic. He uncharacteristically upbraided the 7th Circuit's newly issued ruling --- apparently written by the very rightwing Federalist Society member Judge Frank Easterbrook --- as "Horrendous".

"I rarely just rant in my blog posts," he tweeted, along with a link to his follow-up, "But Judge Easterbrook caused me to blow a gasket."

I know the feeling. I felt the exact same way while reading the new opinion today, particularly the part in which the court offers blatant --- and long-ago debunked --- falsehoods about where and when they claim Photo ID to be "essential", such as when boarding an airplane.

Trouble is, that is a blatant lie. A Photo ID is absolutely not required to board an airplane, no matter how many times proponents of these sorts of laws repeat the false claim. And it's simply remarkable that such a lie (and others akin to it) would be included in a last-minute opinion meant to justify an Appellate Court ruling that is about to be heard by the U.S. Supreme Court...

Rather than hear appeals from cases in Utah, Indiana, Oklahoma, Virginia and Wisconsin where marriage equality bans were struck down, the U.S. Supreme Court shocked court watchers today by deciding to avoid the issue of marriage equality as a Constitutional right entirely for the time being. Effectively, that means the lower-court rulings stand in each of those states, so freedom, liberty and the conservative Constitutional value of equal justice for all wins the day in each of them.

Evan Wolfson, founder and president of Freedom to Marry, a national organization dedicated to the fight for equality in all fifty states, said after today's Supreme Court punt: "This decision by the Court is a huge step forward --- and a clear green light for full-speed ahead --- but it needlessly postpones the national resolution that together we've been working so hard for. Freedom to Marry is committed to finishing the job."

Couples in six other states where the Circuit Court of Appeals' decisions will likely also apply include Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

With the addition of those 11 states, the list of states where marriage equality for all will soon be recognized will jump to 30, continuing to beg the question of which state will disgrace the Union as the very last one to allow equality, in this measure, for all of its citizens.

On Thursday morning, the ACLU filed an Emergency Application to Vacate [PDF] with the U.S. Supreme Court to vacate a Sept. 14, 2014 stay of a U.S. District Court ruling that had, before the stay, permanently blocked enforcement of a Republican-enacted, Wisconsin photo ID voting law.

The civil rights organization argues that the emergency ruling is needed to prevent mass disenfranchisement and electoral chaos during the upcoming Nov. 4 election. It asks that the Court "leave that injunction in force pending the Seventh Circuit's issuance of a decision on the merits."

As the District Court judge had found, before his decision was overturned by a partisan ruling at the Appellate Court level, Wisconsin's attempted restriction on the voting rights of legally registered voters poses a real and present danger that some 10% of the Badger State's duly registered electorate will likely be prevented from voting in the rapidly approaching November 4 election.

The District Court's injunction had been stayed as a result of a deadlocked court, in which five bipartisan members of the ten-judge U.S. 7th Circuit Court of Appeal described in a Sept. 29 Opinion [PDF] as a "brazen" and "shocking" disregard of both precedent and the right of the minority to vote. That "shocking" position had been advanced by the attorneys representing Republican Gov. Scott Walker and first accepted by an all-GOP, three-judge panel that had issued an extraordinary, 11th hour decision to vacate the lower court's injunction.

The case now poses an enormous test for at least two key Justices on the high court. Will Chief Justice John Roberts and Justice Anthony Kennedy adhere to the very principles they signed on to when they joined the plurality opinion authored by former Justice John Paul Stevens in the landmark 2008 SCOTUS decision in Crawford v. Marion County Board of Elections? That case upheld Indiana's Photo ID law against a "facial" challenge solely because, in the words of the plurality opinion, there was no evidence before the court at the time to prove anyone would be disenfranchised or that their right to vote would be unduly burdened by the law.

In signing onto Steven's lead opinion, both Roberts and Kennedy agreed that election laws, including photo ID voting restrictions, are subject to the Anderson/Burdick test. That test mandates that courts, on a case-by-case basis, measure a law's potential damage to voters' right to vote against the specific claims made by the state as to why such additional burdens and restrictions are necessary. Given that the state has offered no legitimate reason for potentially disenfranchising as much as 10% of Wisconsin's lawfully registered voters, Roberts and Kennedy cannot refuse to lift the stay without a total abandonment of principle...

A bit of encouraging voting news came out of North Carolina on Wednesday, believe it or not. We'll see how long it lasts.

By way of a 2-1 decision and a lengthy Opinion [PDF] on Wednesday, a three-judge panel on the U.S. 4th Circuit Court of Appeal ordered U.S. District Court Judge Thomas J. Schroeder, a George W. Bush appointee, to issue a preliminary injunction to prevent the State of North Carolina from implementing two provisions of a sweeping election "reform" bill.

The court sharply criticized the lower court's ruling that previously allowed the law to move forward as is, despite the likelihood of a disproportionate effect on minority voters in the Tar Heel State.

The BRAD BLOG described the bill in question, when it was passed by the GOP legislature last year, as "the nation's worst voter suppression law since the Jim Crow era." The law includes virtually every restriction on voting --- shortening early voting hours, ending same-day registration, implementation of disenfranchising polling place Photo ID restrictions and much more --- ever attempted by Republicans across the country over the past decade. The legislation was, quite literally, rammed through the state's Republican-controlled legislature, with no period for public comment or debate, just one day after a sharply-divided U.S. Supreme Court gutted the heart of the Voting Rights Act in the Summer of 2013.

The majority opinion at the 4th Circuit was highly critical of Schroeder's analysis in the case. They described it as "flawed," containing "grave errors" and "plainly wrong" on the law. The court found that the District Court judge abused his discretion in refusing to issue a preliminary injunction that would prevent implementation of two provisions of the state's H.B. 589.

In their decision, the three-judge panel's majority also offered significant interpretations of Section 2 of the Voting Rights Act (VRA), that, if ultimately upheld, could minimize the damage wrought by the gutting of Section 5 by the U.S. Supreme Court last year...

As most of his "questions" are the same talking points we've seen of late, used by tons of either duped or disingenuous Rightwingers in hopes of justifying GOP voter suppression with polling place Photo ID restrictions, you may find both his questions and our brief answers to them, as posted in full below, interesting and/or helpful...

Bad news for voters in the Buckeye State. Good news for partisan Republicans who prefer to win elections by making it more difficult for voters to vote.

In a 5 to 4 decision, the Rightwingers on the U.S. Supreme Court have now overturned the 6th Circuit's earlier ruling that had blocked Ohio Republicans' attempt to limit early voting by shortening the Early Voting period by one week, eliminating the week where voters could both register and vote on the same day, and by doing away with Sunday voting before the election...

Via SCOTUSBlog comes this Supreme Court order staying the district court's order preventing various cutbacks in early voting (including a cutback from 35 to 28 days, and elimination of one of the two early voting days on a Sunday, a day African-American churches had been using for "Souls to the Polls" voter drives). [It is not clear from earlier orders which Sunday might be eliminated.]

Although the order is "temporary" in the sense that it will be in place pending a ruling on a cert. petition ultimately to be filed by Ohio in the Supreme Court, that won't happen before this election, and so for this election the new shorter voting period is in effect --- and not the old rules put back in place by the district court and affirmed by the 6th Circuit.

That the Court divided 5-4 along liberal conservative lines is no surprise...

See Hasen's coverage for his analysis of what happened here, and why he believes it was a mistake to even challenge the OH Republicans' new restrictions on early voting. Please note: We don't necessarily agree or disagree with his analysis, at this time. But you can read it and decide for yourself.

Our most recent coverage of the 6th Circuit Court of Appeal's decision to uphold the lower District Court decision blocking the GOP voting restrictions is here.

The GOP in Ohio has been attempting to shorten and otherwise restrict Early Voting in the state ever since reforms put in place in 2005 --- in response to the embarrassingly disastrous 2004 Presidential Election there --- worked well enough that most of the problems voter had voting had disappeared by 2008. As we have documented over the years, every time they tried to limit those successful reforms, the courts had blocked them from doing so. They did so again this year, until today's 5 to 4 ruling by the Supremes.

It should also be noted that it is, arguably, because John Kerry failed to keep his promise and fight to make sure every vote was counted in Ohio's contested 2004 election, that the U.S. Supreme Court has now gone so hard to the right, with the addition of Justices Roberts and Alito during George W. Bush's second term.

With today's SCOTUS ruling, and the bad news from the partisans on the 7th Circuit concerning WI Republicans' draconian Photo ID voting restrictions, as our legal analyst Ernie Canning detailed this morning, it seems many of this year's most important elections may be won, or lost, in the courts --- before Election Day even gets here.

* * *

Please help support The BRAD BLOG's fiercely independent, award-winning coverage of your electoral system --- now in our ELEVENTH YEAR! --- as available from no other media outlet in the nation...

With just weeks to go before mid-term elections and a "too close to call" Gubernatorial contest, disenfranchisement and electoral chaos in Scott Walker's Wisconsin reign supreme. And only the U.S. Supreme Court may now be able to do anything about it.

In a 5 to 5 ruling, an evenly divided, en banc U.S. 7th Circuit Court of Appeal has issued a Cursory Order [PDF], summarily denying an ACLU Petition for an Emergency Rehearing to put the brakes back on the state Republicans' Photo ID voting restriction in advance of the November election.

The ACLU petition followed on the recent extraordinary ruling by three Republican appointees to the federal bench that had vacated a permanent federal court injunction of the law. That injunction, until it was lifted by the three-judge 7th Circuit panel just weeks ago, prevented Wisconsin from enforcing a Photo ID voting law which a U.S. District Court judge had found would likely result in the disenfranchisement of up to 300,000 perfectly lawful registered voters who lack the now-requisite, state approved photo IDs.

As we recently reported, the ACLU, in its emergency petition, argued that it will be virtually impossible for the Badger state's Department of Motor Vehicles to process the number of official state photo IDs that would be required to insure that every lawfully registered voter who desires to vote would get the opportunity to vote in the upcoming Nov. 4 election. Moreover, thousands of absentee ballots that had already been mailed prior to the 7th Circuit panel's lifting of the injunction may not be counted since they did not include notice of the new rules requiring that they must be accompanied with copy of the voter's photo ID.

Following the 5 to 5 decision of the full 7th Circuit (one seat remains vacant, more on that below), the ACLU and other plaintiffs' only recourse for now will be an emergency petition to the U.S. Supreme Court. Given the deadlock by the 7th Circuit and reasoning applied not only by the original U.S. District Court Judge in this case, and also by a 6th Circuit panel in an Ohio early voting case, as well as by six (6) of the (9) U.S. Supreme Court Justices who took part in a landmark 2008 Photo ID decision --- all decisions which were inconsistent with the reasoning applied by the three-judge 7th Circuit panel in the Wisconsin case, which has now been essentially upheld --- a challenge at the U.S. Supreme Court has at least a reasonable prospect of success.

Yes, Ohio Republicans are still barred from limiting the early voting period and still required to restore the days and hours they had, yet again, tried to cut off. At least they are barred, again, for now.

On Wednesday, a unanimous three-judge panel of the U.S. 6th Circuit Court of Appeal issued a 50-page ruling [PDF] in which it upheld a lower court's preliminary injunction from three weeks ago that prevented Ohio’s Republican Secretary of State John Husted from implementing a Feb. 19, 2014 GOP-engineered statute, and his own further Directive, which would have drastically reduced the number of early voting days and hours and eliminated same-day registration and voting during the first five days of a previously established 35-day period of early voting in the Buckeye State.

Reflecting the fact that he anticipated an adverse ruling, Ohio's Republican Attorney General Michael DeWine filed an Emergency Appeal for a Rehearing [PDF] by the full 6th Circuit, on the very same day the three-judge panel handed down their decision. His appeal presents essentially the same arguments that have now, repeatedly, been rejected by the courts, first in a 2012 case, Obama for America v. Husted, and now, again, in Ohio State Conference of the NAACP v. Husted...

Well, this is an interesting turn of events. It includes a bizarre twist that even we would not have foreseen, involving a Republican operative who is now threatening legal action against us for reporting (accurately) on his companies' relationship to voter registration fraud and deceptive voter registration practices during the 2012 election and in previous cycles.

The firm at the center of the RNC scandal was named Strategic Allied Consulting. It was created and run by Nathan Sproul, a notorious Arizona-based Republican operative with a checkered past, who ran Republican voter registration drives and other on-the-ground GOP activist campaigns. Sproul's name was not used in the legal filings which created Strategic Allied Consulting in advance of the 2012 election, due to his various companies facing voter registration fraud allegations and criminal investigations in a number of states going back as far as the 2004 Presidential election. Because of that unfairly tarnished background, Sproul claimed when the 2012 scandal first surfaced, the RNC didn't want his fingerprints on the operation. The RNC was dodgy about the issue, but fired Sproul and his firm in several states once the scandal came to light, despite having paid millions of dollars for the effort.

In the same series of articles, we also exposed the deceptive (and perhaps illegal) registration scheme employed by Sproul's firms in states where they operated. The scheme involved registration workers trained to pretend to be pollsters asking voters who they planned to support in the Presidential election. If they answered the question correctly (Romney) Sproul's workers would help them register to vote. If the unsuspecting citizen answered the "survey" question incorrectly (Obama), the workers would wish them a nice day, and then move on to the next target.

Now, a two-year Florida Department of Law Enforcement (FDLE) investigation has finally wrapped up into the 2012 allegations in that state. It has led to yet another arrest of one of Sproul's workers, found no evidence of conspiracy by the company in that state, confirmed The BRAD BLOG's reporting on their deceptive registration technique, and sent Sproul scurrying to threaten us via email (posted below) with a lawsuit...for something...

THE CONSTITUTION says that federal judges "shall hold their Offices during good Behaviour" - for life, that is, unless they commit an impeachable offense. Which brings us to the allegations of domestic violence against Mark E. Fuller, a U.S. District Court judge in Montgomery, Ala.

The paper then details the police response to the horrifying 911 call from Fuller's wife Kelli after the Judge reportedly "threw her to the ground, pulled her by the hair, kicked her and hit her in the face" (the actual 911 call is more horrifying still), leaving her bloodied inside their Ritz-Carlton hotel room in Atlanta on August 9th, and the disturbing similarities to the case of the NFL's Ray Rice, who was also allowed off the hook by the court system after beating up his then-fiancee/now-wife, as "first time offenders". (Even though Judge Fuller's previous wife alleged similar physical abuse during their divorce trial).

The ACLU is seeking the immediate reinstatement of the District Court's injunction of the state Republicans' Photo ID voting law. The lower court had previously found the statute to be, in no uncertain terms, in violation of both the U.S. Constitution and the federal Voting Rights Act.

When they later file briefs, the ACLU and other attorneys representing the plaintiffs in Frank v. Walker will undoubtedly go into greater depth to explain how the three GOP members of the 7th Circuit panel erroneously interpreted the U.S. Supreme Court's 2008 decision in Crawford vs. Marion County Elections Board and how the WI law, "Act 23", is "materially different from" the Photo ID law passed by Indiana Republicans and approved by SCOTUS in 2008.

The emergency filing, however, zeroes in on what the ACLU describes as chaos and disenfranchisement that will likely be caused by an "extraordinary decision" last week, which, they say, seeks to effectuate a "slapdash implementation" of a radical and complex change in the Badger State's election law just seven weeks prior to the November 2014 general election...

The 79 to 18 vote to end debate and move on to a final vote on the measure included 25 "yes" votes from Republicans. However, The Hill reports, many of the GOP Senators are expected to vote against the resolution, "but by allowing it to proceed [they] ensured that it will tie up the Senate for most of the week." The Senate, which just returned from its 5-week summer recess on Monday, is in session for just two weeks before breaking for mid-term elections. A vote on the resolution may help to run out the clock on other Democratic priorities before the next recess.

Citizens United, as we wrote just after the U.S. Supreme Court's 2010 decision, has "opened the door to the creation of a new master-class under the aegis of the most undemocratic of institutions --- the private corporation." In fact, it has proven to have opened the floodgates for would be oligarchs, like the self-described "libertarian" Koch brothers, to further undermine the very foundation of our representative form of democracy --- a strategy that has resulted in their spending as much as $300 million to win control of the U.S. Senate for Republicans in the upcoming mid-term elections alone.

"We should have debate on this important amendment," Senator Chuck Grassley (R-IA) declared before casting his vote for cloture, in order to end the debate on Monday. "The majority should be made to answer why they want to silence critics."

One Republican Senator who voted against cloture, who is apparently not even in favor of allowing the U.S. Senate to vote on the measure, is Kentucky's Rand Paul. The similarly "self-described libertarian" Paul, who is not up for re-election this year, but is currently a front-runner for the 2016 Republican nomination for President, joined a minority of his GOP colleagues in voting against allowing the proposed amendment to receive an up or down vote. That vote, as well as his past efforts to shield corporations from democratic and legal accountability, underscore once again that the Kentucky Senator and the infamous Koch brothers are cut from the same cloth.

As Sen. Bernie Sanders (I-VT), a co-sponsor of the amendment, observed, the measure entails the "major issue of our time": to wit, "whether the United States of America retains its democratic foundation or whether we devolve into an oligarchic form of society where a handful of billionaires are able to control our political process by spending hundreds of millions of dollars to elect candidates who represent their interest."

If it's up to Rand Paul, clearly he favors the latter.

Monday's vote is also a reminder that the upcoming 2014 mid-term elections are far more important than ordinary citizens may realize. The long-shot resolution, S.J. Res 19, would require two-thirds approval in both the U.S. Senate and House of Representatives before moving on for ratification as an Amendment to the U.S. Constitution by three-quarters of the state legislatures. Given that extraordinary requirement, those voters who may oppose unlimited "dark money" political spending by corporations and billionaires would have to ignore a blizzard of Koch propaganda this year and vote Democratic or independent candidates into control of both chambers of Congress in order for the Amendment to become a reality.